ARTICLE: The Emerging Restrictions on Sovereign Immunity: Peremptory Norms of International Law, the U.N. Charter, and the Application of Modern Communications Theory Skip over navigation
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Copyright (c) 2013 North Carolina Journal of International Law & Commercial Regulation, Inc.
North Carolina Journal of International Law & Commercial Regulation

ARTICLE: The Emerging Restrictions on Sovereign Immunity: Peremptory Norms of International Law, the U.N. Charter, and the Application of Modern Communications Theory

Winter, 2013

North Carolina Journal of International Law & Commercial Regulation

38 N.C.J. Int'l L. & Com. Reg. 375

Author

Winston P. Nagan+ and Joshua L. Root++

Excerpt



I. Introduction
 
This article deals with the evolution and status of the international law doctrine of sovereign immunity. The doctrine Par in parem non habet imperium ("An equal has no power over an equal") 1 provides that sovereigns are equal as juridical bodies and have no authority to use their own courts to sue other sovereigns without the consent of the latter. 2 This doctrine is an old concept in international law. It initially appeared to endorse an absolutist form of sovereignty, which implied an over-simplified view of the role of sovereigns in a global setting. From an early period, scholars and judges felt that over-extending the doctrine would result in the denial of legitimate legal rights and duties. Still, the doctrine carried a strong imprimatur of impermeability. This is in part due to the historical context of the general development of the sovereignty principle in international law and, particularly, the emergence of legal positivism, which appeared to provide a strong doctrinal foundation for an absolutist view on the concept of sovereignty. This jurisprudential assumption influenced the emergence of sovereign immunity as well.

The customary international law principle (or rule) 3 of sovereign immunity - also called jurisdictional immunity - has its roots in treaties, domestic statutes, state practice, and the writings of juris consults. 4 The principle is based on the theory that the sovereign has an exclusive monopoly on law-making. For this reason, the legal theorist John Austin denied that international law purporting ...
 
 
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